Galloway v. Town of Hartford, 2012 VT 61.
As the title says, today’s case is a three-way split concerning the application of the law enforcement exemption to the Vermont Public Records Act. In an unusual split, we have a plurality opinion formed by two justices; a concurrence joined by two more; and a lone dissenter knocking the whole decision. Lump on top of that the fact that two of the four members making up the majority were superior court judges specially assigned to the case, and you have a recipe for a Mexican Judicial Standoff.
So how did we end up here with a SCOV opinion that is the legal equivalent of three gunslingers in the middle of a Confederate Graveyard?
As usual, the answer starts with an unresponsive naked man found in the bathroom of a house.
In May 2010, the Hartford Police received a report of criminal activity at a private residence. Three officers responded and were met by housekeeper who reported a strange man in the house. Guns drawn, the three went upstairs where they met with the aforementioned naked man sitting upon the toilet. After failing orders to show his hands, the officers doused him with pepper-spray. When the now-blinded individual failed to heed warnings to drop to the ground, the officers tackled him, hit him with a baton, and cuffed and stuffed him. The man allegedly hit back, but not with any particular effect. Still, the man resisted the officers’ orders, and they had to drag him out of the residence.
There, in the light of day with an opportunity to confirm his identity, the officers discovered that the man was, in fact, the Owner of the house. Furthermore, it turns out that the Owner had a unique medical condition where he was prone to lapse into states of unresponsiveness.
Uncuffed and unstuffed, the Owner was taken to the hospital where he was treated for minor cuts and bruises. The police graciously declined to press charges.
Except that Anne Galloway, reporter and publisher of Vtdigger.org (an on-line newspaper and notorious SCOV Law cross-poster), learned about the incident and asked for copies of all Town’s related records. The Town denied the request based on an exemption to the Vermont Public Records Act, which allows the police to deny a request for records associated with a criminal investigation.
Reporter appealed the Town’s decision on the basis that the law enforcement exemption (known as Exemption 5) did not apply because the case was closed and no further investigation or prosecution would be following.
The trial court disagreed and after it privately reviewed the documents through a process known as in camera, it ruled that most of the documents were exempt from disclosure under Exemption 5. Reporter appealed this decision.
This tees things up for the SCOV. The plurality begins the substantive portion of its decisions by reaffirming the standard applied to any public records case. The law requires the courts to apply the Act liberally and to interpret any exemptions narrowly to ensure that the public has the widest access possible to all public records. This is pretty standard, and you would be hard pressed to find a public records case over the past 30 years that starts any other way—even when the SCOV ultimately upholds the exemption. Part of the reason is because the standard is unique to the Act, and its language creates a high burden for any agency seeking to deny a request. This must be stated even when the exemption is upheld because each decision is intended to apply the exemption narrowly and avoid the impression that it represents an expansion or enlargement of what can be kept from public disclosure.
From here the plurality focuses on the question of what happened to the Homeowner. Was it an arrest? Or was it an investigatory detention? The difference is important because the latter would, arguably, give the Town some basis in denying the request as Exemption 5 does allow a town to deny requests for records associated with a police investigation.
Records associated with an initial arrest, however, are public and must be disclosed under the Act as a matter of law.
To make the determination, the plurality looks to factors from several federal cases that define the distinction between an investigatory detention and an actual arrest. These include the length of the detention, intensity, level of restraint, use of hand cuffs, and amount force applied. Applying these factors to the facts of the case leads the plurality to conclude that this incident crossed-over to an arrest, and as such the records fall outside the exemption and must be released to reporter.
The plurality notes in a passing footnote that most other New England states and several other jurisdictions have similar provisions to allow the disclosure of investigatory detention records. These statutes require the disclosure of such records unless the police can establish a show of harm that would result. The message from the SCOV is a not-so-subtle hint to the legislature that this issue could have been even easier to resolve if Vermont had similar provisions that would have guaranteed disclosure regardless of the nature of the incident.
Joining with the plurality’s reversal but writing separately, Justice Dooley and Judge Zonay concur with the outcome but articulate an even-more straightforward basis for the disclosure: there was no crime. The Town arrested owner in his own home where he was committing no crime. The Town’s decision not to charge owner was not only fair but it was inevitable since there was really nothing to charge. Exemption 5 is a criminal investigation exception. When no crime is committed, Exemption 5 is not triggered.
The Concurrence touts its position as a more simple and straightforward alternative to the plurality’s convoluted is-it-an-arrest-or-isn’t-it analysis. Bypassing the investigation/arrest dialectic that captures the plurality creates an easier to apply standard and is the more efficient result. In addition, the Concurrence lists four reasons that support this reasoning.
First, the interpretation is consistent with the charge to read exemptions narrowly. To the extent that one might argue that Exemption 5 covers non-criminal police work, ambiguity is introduced, and the SCOV must rule against such a broader interpretation of the exemption.
Second, this interpretation follows the policy interests behind the exemption. The purpose of the exemption is to protect the integrity of on-going criminal investigations. Where such an investigation does not exist, there is no protection needed. Even post-investigation factors—such as protecting the identity of informants—are a non-factor since the government has no interest in protecting those who would ring false alarms.
Third, the standard creates an objective test. Either it is a crime or it is not. The Concurrence believes that the legislature would not have created an exemption that rose or fell depending on the nature of the incident. Such a test invites court scrutiny, litigation, and is not apparent to the average record keepers who may not have been involved in the investigation. These are all qualities that the Public Records Act is intended to avoid in its provisions for a quick, simple process designed to encourage the release of documents.
Fourth, the Concurrence’s standard eschews the plurality’s subjective analysis for something that even the man on the street could call. For the sake of clarity, the Concurrence touts its simplicity as a virtue.
Nevertheless, the Concurrence agrees with the outcome and joins with the plurality to form a working majority that reverses the trial court and give reporter the documents she requested.
But this leaves room for a dissent by Justice Burgess. The focus of the dissent joins the Concurrence in attacking the subjective standard adopted by the plurality. By importing federal court standards for “de facto” arrests, the Dissent argues that the plurality has made everything harder for police faced with a public records request. Police record managers must now try to parse through an arrest to determine if the investigation or the investigatory detention crossed the constitutional line into an arrest.
The Dissent notes that the purpose of the exemption and the exception within the exemption for initial arrest records is to separate and protect criminal investigations from the records generated by the actual “arrest” of an individual leading to a criminal charge. As the Dissent interprets the exemption the difference is important. If a detention is made pursuant to an investigation, the courts should not examine whether it was a “de facto” arrest for purposes of the individual’s constitutional rights because it does not matter. The individual has full recourse and rights to her records and may challenge the police actions.
The exemption is not intended as a mechanism to uphold personal rights. It is a vehicle for public scrutiny of police and police action, and as the legislature has articulated, this interest is balanced by the interest in protecting the investigatory process. Therefore, the Dissent concludes, the question here is solely whether the records related to the actual arrest of an individual. Because they do not, they are exempt as part of the police’s criminal investigatory process under Exemption 5.
Since he stands alone on this conclusion, the Dissent’s approach does not carry the day. However, because its criticism and reasoning mirror the Concurrence’s concern there is a substantial question about what this decision actually decides. Only two voted to adopt the “de facto” arrest standards of the plurality. With the Concurrence and Dissent voting to adopt another line of reasoning, we can say that three members—including two sitting Justices— actually voted against this “de facto” test.
Yet, no other reasoning carries a majority of the votes. The result is pretty much what you expect with such a stand-off—no real winner or straightforward line of reasoning to apply. Apart from the dissent, it is arguable that the SCOV has not adopted any line of reasoning. That said, this opinion is chock full of good analysis and may become valuable for parties looking to support a particularly nuanced line of argument on this topic in the future. At any rate, the positions cover the angles and leave little uncovered.
The real winner is reporter who gets her documents, albeit several years after the incident. But given the circumstances, our advice is to claim victory and print the legend.